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Secrecy and release of evidence gathered by the Clinton-Lewinsky grand
jury--#2:

I scanned the web looking for information on grand juries because I have
been wondering about the secrecy issues of testimony before them. Your website was very
helpful and informative, but I am still a bit confused by the latest turn the Starr
investigation of Clinton. If the testimony before the grand jury is secret, then how can
all the records be turned over to Congress (well I can make some reasonable assumptions
about that part), but that does not clarify under what circumstance the records of
testimony are being made public. Because I think the whole course of the investigation is
far beyond the scope of Starr's proper investigation, I have to admit that I paid little
attention to the media reports--I did scan the report on the web and failed to find much
that merited the $4.4 investigation! To be succinct--how is it that the testimony can be
released to the general public? I am assuming it was released to the judiciary committee
so that they could proceed with the investigation toward impeachment.

If the secrecy of
the testimony is not protected, do you think more witnesses will refuse to submit to the
subpoena? What can the ordinary citizen do to voice their opinion. Should I
call/write/e-mail my representative and senator with my opinion?

Response: (1) As to how the material could be released, here is my
basic take on that--I'll answer the subpoena question later in this message. In the
federal system, which, of course, is where the Clinton inquiry is, Rule 6(e) of the
Federal Rules of Criminal Procedure says that "matters occurring before the grand
jury" are secret and to reveal that information is punishable as the crime of
criminal contempt.

The rule also creates certain situations in which grand jury
information can be revealed, albeit narrowly. One is for a court to grant a request to
reveal grand jury material for use in connection with a "judicial
proceeding"--so it can be revealed, using this procedure, for use in a civil trial.
An argument can be made that this option doesn't apply to the Starr report because an
impeachment proceeding--which proceeds in Congress, a legislative body--is not a judicial
proceeding. But no one has raised that objection, so Starr was allowed to send his
information to Congress.

As to whether the House can lawfully reveal the information, that raises two questions:
(1) Does grand jury secrecy still cover the material once it gets to Congress? and (2) If
not, does Congress have an independent obligation to keep the material secret?

I don't think grand jury secrecy applies once the information has been given (properly
or improperly) to Congress. When grand jury information is legitimately authorized to be
released for use at trial, that authorization implicitly approves making the information
public, because trials are almost always public. If you apply that standard here, it seems
that by sending the material to Congress, it lost its character as secret. . . . the
"cat is now out of the bag," in effect. (One can argue that the release was
improper, but if no one raises that, it becomes moot.)

As to Congress, one can argue that it should maintain some restraint in using and
releasing the material. Congress, of course, is a political body, and as such, does not
act like a grand jury. In the Watergate hearings in the House, some members proposed that
the hearings be closed, but that proposal was defeated, as most members believed closing
the hearings and maintaining secrecy about what was going on would lead to public
hostility and concern that deals were being made, evidence, suppressed, etc. I suspect
something similar will happen here.

(2) Subpoena: I don't know what kind of effect all this is going to have. From the
email messages I'm getting, I have the impression it has really shaken public confidence
in grand juries in general, and in their secrecy in particular. I wish you would write/fax
your representatives and anyone else you can think of.